There are few Supreme Court decisions as hallowed and untouchable as the Warren court’s 1954 decision in Brown v. Board of Education. Not only was that decision a brave condemnation of our nation’s racist practices, but it also represented a hope that one day all people could live together without skin color separating them. While perversely citing the Brown decision in its recent ruling, the current court made it clear that if the conservatives have their way, these ideals of equality are vulnerable to change just 53 years after Brown.
Last week’s 5-4 ruling was supposed to decide whether the busing policies of two districts in Seattle and Louisville, which attempted to combat the de facto segregation of their districts, were constitutional. But more than just the integration policies of two districts were at stake: Before the court was a landmark case about racial diversity and the legacy of the Brown decision.
The court’s opinion was watered down by a concurring opinion from Justice Anthony Kennedy, who asserted that race-conscious policies are legal as long as they are “narrowly tailored” enough to advance society’s best interests. Yet, the majority opinion by Chief Justice John Roberts essentially ruled that race-conscious policy is unconstitutional. Nothing could be further from the court’s decisive ruling 53 years ago.
As Justice Stephen Breyer points out in the primary dissenting opinion, this “color-blind” approach to promoting racial equality ignores the realities of American life. In our society, there is a blurred line between de jure and de facto segregation that makes them nearly indistinguishable. And until last week, the Supreme Court championed itself on combating all forms of segregation.
The Court’s conservatives also twisted the Equal Protection Clause itself. While the weak majority of Roberts, Clarence Thomas, Samuel Alito and Antonin Scalia claims that using race to place students in schools is no different from Jim Crow laws, the difference is that Jim Crow laws were policies of exclusion, not inclusion. In the Brown decision, the court determined that racial diversity in our schools was a goal with both educational value and society’s best interests in mind. This principle shouldn’t change.
As Breyer said when the decision was read, “It is not often in the law that so few have so quickly changed so much.”
For the University, the court’s ruling leaves mostly uncertainty. While Kennedy’s concurring opinion implies that the University’s post-Proposal 2 diversity policies of recruitment and race-conscious scholarships could be legal, it seems far-fetched to believe that the legality of Proposal 2 would be struck down by the current court. But with the precedent of the 2003 rulings regarding the University’s admissions policies, there is also reason to believe that the University may be able to lawfully consider race despite Proposal 2.
Unfortunately, with hotly contested social problems like racial equality, ambiguity is the last thing our country needs. In fact, this is the same reason Chief Justice Earl Warren rallied his court to a unanimous decision in Brown. As a testament to the ineffectiveness of Chief Justice Roberts, all of the most important decisions this year – including decisions on global warming, campaign finance and pay discrimination – were 5-4 decisions. These decisions will inevitably force divides in our society rather than fostering progress.
When the court ruled against race-conscious policies last week, it didn’t just ignore the realities of our society, the intent of the Fourteenth Amendment and the precedent of more than 50 years of both conservative and liberal justices alike; it ignored the consequences of its actions.
For all the bravery and idealism of the Warren court in 1954, the current court managed to wipe those goals away with just one cowardly decision.